Mayer Brown attorneys, including partner Paul Hughes, filed a lawsuit in the US District Court of the Middle District of North Carolina, challenging the legality of the August 9, 2018 USCIS policy memorandum on the accrual of unlawful presence for F, J, and M visa holders.

If an individual accrues more than 180 days of unlawful presence, she is subject to a 3-year reentry bar. That bar grows to 10 years if the individual is unlawfully present for 365 days or more. Previously, USCIS calculated unlawful presence as beginning the day after an immigration officer or immigration judge determined that the holder of an F, J, or M visa is out of status. That policy provided necessary notice to individuals, providing them an opportunity to cure any status violation prior to the imposition of a reentry bar. This policy has controlled for more than 20 years.

On August 9, USCIS issued a policy memorandum that purports to create a fundamentally different policy regarding unlawful presence. Now, USCIS will backdate unlawful presence, beginning the clock on the date of the factual situation which rendered an individual out of status. Thus, when an immigration officer or judge determines that an individual is out of status, the result is an automatic 3- or 10-year reentry bar if more than 180 days have elapsed from the underlying factual circumstances, which is often the case.

Plaintiffs include Haverford College, The New School, Guilford College, and Foothill-De Anza Community College District, among others.  The universities argue that the revised policy is “intentionally designed to impose tens of thousands of reentry bars” of up to 10 years on holders of visas typically granted for academic purposes.  The complaint states that now it is “impossible for an individual to know with certainty what conduct will trigger such a reentry bar. An individual may commit conduct that he or she has no reasonable way of knowing will later cause an USCIS officer or immigration judge to later declare him or her ‘out-of-status,’ and—because of the new policy of backdating—will be immediately subject to a reentry bar once that decision is made.”

Read more here

In an article appearing in Law360, Lisa Pino offers expert analysis on the key points from USCIS’s new Notice to Appear (“NTA”) policy.  In the article, Pino notes that although the new NTA policy does not currently impact employment-based petitions, it nevertheless “is of concern to unauthorized immigrants.”  Pino writes that “unless applicants seeking immigration benefits are confident that their respective applications will be approved, their chances and risk of facing an NTA and a subsequent deportation proceeding in court have now significantly grown.”  Read the article here.

In June 2018, USCIS circulated a new policy memo providing guidance on when cases should be referred for deportation proceedings and when Notices to Appear (“NTAs”) should be issued in instances where applicants are deemed inadmissible or deportable.  Implementation of the new policy was delayed as USCIS determined how exactly the new policy would be put into action.  While we have yet to see how implementation will take shape, the policy is now in force and will be incrementally rolled out.

Law360 discusses what the new policy means for foreign nationals whose status-bearing applications are denied.  The article quotes Paul Virtue who states that the memo is “clearly designed to ensure that a decision not to issue an NTA should rarely be taken.”  Read the article here.  USCIS has also released Q&As from its September 27, 2018 stakeholder teleconference on the new policy memo.

Prime Minister Theresa May’s announcement on October 1, 2018 that Britain will not continue to give EU nationals preferential immigration treatment after Brexit heralded the future of immigration between the EU and Britain. Britain will decide what the immigration requirements are for EU nationals. Speculation on whether Britain will adopt “US-style” visas for travel and work has been considered, and May herself already indicated that waivers of visa requirements may continue on a reciprocal basis with countries (or regions) with which Britain agrees to these requirements.

The principal import of the Prime Minister’s announcement is that after 2020, EU nationals will need to apply for formal admission requirements in advance of moving to Britain, and may also face travel visa or pre-registration requirements. What these requirements will ultimately translate to will depend on continued negotiations and the input of key business sectors  and stakeholders such as the Migration Advisory Committee.   Continue Reading Theresa May’s October 1 Announcement Heightens Concerns About EU Nationals’ Travel and Work Authorization After Brexit

On September 27, the USCIS Office of Public Engagement hosted a live teleconference to inform the public how the agency will implement its new policy, or policy memorandum (PM), issued on June 28, 2018, “Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens.”  The policy aligns USCIS operations with Executive Order 13768: Enhancing Public Safety in the Interior of the United States.

The NTA requires the recipient to appear in court before an immigration judge, and is the first step in removal, or deportation, proceedings. After a brief overview of the new NTA policy, which supersedes previous 2011 USCIS guidance on the same topic, USCIS presented a Q&A series from more than 100 questions received by stakeholders. The USCIS teleconference participants represented a broad spectrum of the agency’s divisions including USCIS Field Operations, Policy, and Office of Chief Counsel.  USCIS also announced that the agency will soon host a public webpage about the new NTA policy implementation, and that information conveyed during the teleconference would soon be available in the USCIS electronic reading room.

The top 10 takeaways of the USCIS teleconference regarding its new NTA policy implementation include the following points: Continue Reading Top 10 NTA Takeaways: USCIS Goes Live to Reveal Implementation Plans of New DHS Deportation Policy

As anticipated by an earlier blog post, and after a couple of months of internal planning, USCIS is ready to announce its implementation plan related to the agency’s new Notice to Appear (NTA) policy guidance.  On Thursday, September 27, Mayer Brown’s Global Mobility and Migration practice will eagerly join a live USCIS teleconference entitled “Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens”.  The dialogue will enable our attorneys to immediately learn and question how broadly USCIS plans to interpret its upcoming interpretations of NTA guidance that may warrant deportation proceedings.  As previously shared, USCIS officers will soon issue NTAs on a wider range of cases where an individual is removable and there is evidence of fraud, criminal activity, or where an applicant is denied an immigration benefit and is unlawfully present in the United States. The USCIS teleconference should also share more insight regarding the Department of Homeland Security’s removal priorities per Executive Order 13768, Enhancing Public Safety in the Interior of the United States. More to come from The Mobile Workforce on this topic.

On August 17, 2018, Judge John D. Bates of the US District Court for the District of Columbia issued an order granting the government’s motion for a stay pending appeal of the court’s order requiring the Department of Homeland Security (DHS) to begin accepting applications for initial grants of DACA benefits and for advance parole under the DACA program.  As discussed in Mayer Brown’s Alert regarding the order, the court, in line with other courts that have reviewed the issue, did not grant the government’s motion with regard to applications for renewal of DACA benefits, which DHS must continue to accept.

USCIS announced today that it is expanding its temporary suspension of premium processing to include additional types of H-1B petitions such as change of employer petitions and amendment petitions. Currently, the suspension impacts only cap-subject H-1B petitions which continue to be adjudicated under regular processing.  Effective September 11, 2018, all other H-1B petitions will be subject to the same suspension except for the following: (1) cap-exempt petitions filed exclusively with the California Service Center because the employer is cap exempt or because the beneficiary will be employed at a qualifying cap exempt institution, entity, or organization; or (2) petitions filed exclusively with the Nebraska Service Center requesting continuation of previously approved employment without change with the same employer, with a concurrent request for either a visa notification (consular notification) or extension of stay.  This means that premium processing is suspended for H-1B change of employer petitions by which a foreign worker may transfer or “port” from one employer to another, as well as for H-1B amendments based on changes in employment such as job location changes.  The suspension is expected to last until February 19, 2018.

On July 30, 2018, US Citizenship and Immigration Services announced that it will postpone its June 28, 2018 guidance for the issuance of Notices to Appear (“NTA”) to commence removal proceedings in certain cases.  For the time being, USCIS will delay activating the new NTA policy until the agency determines an implementation plan.  USCIS did not indicate a timeline or date however by which it will publish its NTA operations plan, an agency function traditionally held by US Immigration and Customs Enforcement (“ICE”).

Although USCIS NTAs are on hold until further notice, employers can take practical steps now to prepare for the agency’s transition, specifically by assessing if any of their foreign national employees may be at risk of a potential removal or deportation proceeding.  For example, student employees should have their most current address on file with USCIS in case they receive a Request for Evidence, otherwise they will not be able to respond to USCIS, and could unknowingly receive a NTA if they fail to provide a respond.  Similarly, for employees whose work authorization relies upon a non-immigrant visa category, such as an H-1B visa, employers may renew or extend the non-immigrant status beginning six months in advance of the visa expiration.  Renewing a non-immigrant visa status as early as possible allows both employers and employees more time to respond to Requests for Evidence, or concurrently strategize other immigration options that may be available, and minimize a disruption of work.

For more information about the USCIS NTA policy delay, please read our Mayer Brown Global Mobility Legal Alert here.